Issue: The former partners of a lawyer who is
retiring from the practice of law after a long and distinguished career are hosting
a retirement dinner in the lawyer’s honor. Although the inquiring Judicial Official
has known the retiring lawyer for many years, they do not socialize. The retiring
lawyer used to appear regularly, and the former partners still appear regularly,
before the Judicial Official. Everyone who attends will be a guest of the former
partners, who are paying for the entire event. Guests will include family members
and friends of the retiring lawyer, plus lawyers who practice in various areas of
the law and some judges. May the inquiring Judicial Official attend the retirement
dinner?Response: Based on the information provided, four of the five
Committee members concluded that the Judicial Official should not attend the retirement
dinner because attendance is likely to create an appearance of impropriety in violation
of Rule 1.2. In reaching its decision, the Committee majority took into account its
prior opinion in JE 2008-16,
and the proscription in Rule 2.4 against permitting external
influences on judicial conduct or judgment, as well as the following factors: (1) the
event is by invitation only and not open to members of the legal community at large,
(2) the dinner will be paid for and hosted by the former partners of the retiring lawyer,
who regularly appear before the Judicial Official, (3) guests include family and friends
of the retiring lawyer, lawyers who practice in various areas of the law, and a limited
number of judges, (4) the Judicial Official does not have a close personal relationship
with the retiring lawyer, and (5) it is likely that guests attending the dinner may
have cases pending before the invited judicial officials, thus raising the likelihood
of future disclosure and disqualification issues.

One of the Committee members dissented from the view of the majority. The dissenting
Committee member believes that there is a longstanding and salutary custom and practice
of honoring attorneys upon their retirement from decades of legal practice and that these
events traditionally and properly include judges before whom a retiring attorney has
previously practiced. In the dissenting member’s view, a judge’s attendance at a retirement
dinner to honor an attorney’s “long and distinguished” career is neither improper nor does
it create an appearance of impropriety in violation of Rule 1.2.

The dissenting member does not agree with the majority’s conclusion that a violation of
Rule 1.2 occurs when a judge’s conduct “is likely to create an appearance of impropriety”
(emphasis added). Rule 1.2 instructs judges to “avoid impropriety and the appearance of
impropriety,” and it further states that “the test for appearance of impropriety is whether
the conduct would create in reasonable minds a perception that the judge violated this Code
or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality,
temperament, or fitness to serve as a judge” (emphasis added). In the dissenting member’s
view, the appropriate inquiry under Rule 1.2 is whether proposed conduct would create an
appearance of impropriety, not whether it is likely to do so.

As to the law firm’s sponsorship of the event, the dissenting member concludes that a
judge’s receipt of a meal in the context of an event to honor an attorney’s long and
distinguished career would not appear to a reasonable person to undermine a judge’s
independence, integrity or impartiality in violation of Rule 3.13(a). The Judicial
Official in this instance is not receiving any benefit or treatment that is different
from any other guest (including lawyers and non-lawyers) at the retirement dinner.
In the dissenting member’s view, the Judicial Official’s attendance without charge
should not be prohibited but instead should be subject to possible reporting in accordance
with Rules 3.13(c)(2) and 3.15.

As to the majority’s concern about the presence of “guests attending the dinner [who] may
have cases pending before the invited judicial officials,” the dissenting member believes
that the same holds true for any number of professional and social events that judges routinely
attend. In the dissenting member’s view, the presence of such guests does not raise “disclosure
and disqualification issues” as the majority contends.

In the dissenting member’s view, there is no indication that the retirement dinner has been
organized for any ulterior purpose to influence judicial officials. Accordingly, the dissenting
member does not agree with the majority that the Judicial Official’s attendance would amount to
“permitting external influences on judicial conduct or judgment” in violation of Rule 2.4.